Killer may never stand trial

By Amanda Kerr

Wednesday, January 20, 2010 2:20 AM EST

JAMES CITY

Whenever Police Investigator Bill Gibbs finds himself in Grove near Whispering Pines mobile home park, his mind begins to wander.

“I think of the case and of Brittany every time I drive by the spot,” he said somberly in an interview Tuesday.

The case is the 2005 rape and murder of 16-year-old Brittany Binger, whose body was discovered on the morning of Jan. 3 by a newspaper carrier. Her body appeared to have been posed in a crucifix position. Her shirt was pulled up and her pants pulled down.

Five years later, the lone suspect remains in custody but is no closer to trial than the day he was arrested. Although linked to the murder through DNA and physical evidence, Oswaldo Martinez may never stand trial.

Deaf and mute, he is unable to participate in his defense and remains institutionalized. He’s in a Catch 22 situation. If he learns to communicate with his attorney, a conviction would likely get him the death penalty.

Danielle Dewald, a friend of Brittany's, said she last saw her around 7:30 p.m. on Jan. 2. The two had spent the afternoon listening to music and playing Tetris on a PlayStation at Dewald’s home in Windy Hill mobile home park.

Brittany decided to walk to another friend’s home in nearby Whispering Pines trailer park. The next morning Dewald got a terrible phone call. Brittany was dead. Her body had been found not far from her other friend’s home.

Dewald and Brittany met a few years earlier while attending Jamestown High School. “We were really close,” she recalled in an interview. “She was a very likable person. She wasn’t mean. She was full of life. She had lots and lots of friends.”

Brittany’s sparkling personality was a testament to her strong spirit as a teen who came from a broken home and was estranged from her parents. She was living with Dewald and another friend at the time of her death.

“She knew she had a hopeful future ahead of her,” Dewald said. “She knew she was going to have a job and that she was going to take care of herself.”Gibbs described the investigation into the murder as the “most intense case I’ve ever worked.”

“This was a 16-year-old girl,” he said. “Knowing that the perpetrator was still out there and wondering, Will he strike again? we had a focus that we’ve got to get who did this off the street as soon as possible.”

It took nearly a month, with everyone on the police department working almost around the clock, for a clear suspect to emerge. On Feb. 17, Martinez was arrested for suspected capital murder, rape and sodomy.

“It was a lot of connecting the dots,” Gibbs said. “It was very much a whodunit. We had a lot of theories. We went in a lot of different directions.”In the days immediately after the murder, bloodhounds tracked a scent from Brittany’s clothing to the Miller Mart and YB’s bar and restaurant on Pocahontas Trail a short distance from where her body was found. But no physical evidence pointed toward a suspect.

A juice bottle found next to Brittany’s body eventually became crucial to identifying a suspect.

Over time, customers at YB’s began to identify Martinez as a recent regular to the bar. Surveillance video from the Miller Mart showed him buying a bottle of juice the night of Brittany’s murder. The type of juice was an exact match to the bottle next to her body.

“It was a room full of investigators looking at video and all of a sudden a couple of people at the same time saw the same thing,” Gibbs recalled vividly. “That’s when the focus went directly on one person.”

Investigators already knew that DNA on the juice bottle was a match for the suspect’s DNA found on Brittany’s body. The key was identifying whose DNA was on the bottle.

A plan was hatched to obtain Martinez’s DNA during one of his usual visits to YB’s. Two investigators sat one afternoon and watched as Martinez sipped a beer. When he left, a waitress collected the bottle and handed it over to police.

Within a day the forensics lab in Richmond confirmed that DNA on the beer bottle was a match to the DNA on the juice bottle. It was an extraordinary turnaround for an overworked lab.

“Everybody was really pumped because we knew we had our guy,” Gibbs said.Martinez was indicted in May 2005. The case has stalled because of unusual circumstances. Martinez, an illegal immigrant from El Salvador, can neither hear nor speak. He apparently had little education. He can’t read or write, and he doesn’t know sign language.

In September 2005 Martinez was ruled incompetent to stand trial. He spent the next two years at a program for the deaf at Western State Hospital in Staunton. In 2007, he was transferred to the Virginia Peninsula Regional Jail after psychiatrists at Western State felt Martinez had maximized his potential there.

In June 2008 Martinez was supposed to be transferred to Central State Hospital in Petersburg to continue working on his communication skills, but a delay left him at the jail here for about a year. He was finally moved to Petersburg in May 2009.

A May 2008 report from Gallaudet University for the deaf indicated that only about 25% of Martinez’s communication was through American Sign Language. The rest was through gestures and pantomime, which are not considered legally reliable.During a hearing last November, Circuit Judge Samuel Powell III noted that a fresh report from Central State said Martinez “has the potential for progress.” The report recommended more visits from his attorney to learn the court process.

Because Martinez is charged with capital murder, there is no statute of limitations on how long the state can hold him. The court can continue to order treatment to restore him to competency, with hearings to review his status every six months. The case is up for review again this May.

Commonwealth attorney Nate Green, who took over the case from Mike McGinty in 2007 when McGinty became a judge in York County, remains optimistic that Martinez may someday stand trial.

“When I first started handling this case I was naive of the length of time that it would take [to achieve competency],” Green said. “I’m more realistic about that now, but my realism hasn’t taken away from my optimism.”

Green feels the two years Martinez spent from 2007 to 2009 in the jail likely slowed his progress.

“There have been times that we’ve been waiting for bed space at an appropriate location and we’ve been in a holding pattern,” he said. “The progress that was made was being lost as he’s in that holding pattern. The work at Western State was diminished by the break in treatment.” Although the court could continue to treat Martinez indefinitely in the hopes of his standing trial, Green said there is one important factor that would change the course of the case.

“It is important we show the court that progress is being made,” he said.

If progress stalls, Martinez could be ruled permanently incompetent to stand trial. Green declined to comment on what might happen should that happen.

In a similar case in York, prosecutors spent three years trying to restore 71-year-old Archie Roth to competency so he could stand trial on a charge of first-degree murder for the brutal death of his wife.

But in 2008 prosecutors dismissed the charge after a report from Eastern State Hospital indicated that his dementia and Alzheimer’s disease were getting worse and that it was unlikely he would ever be competent to stand trial.

Roth was referred to the Virginia Department of Mental Health Mental Retardation and Substance Abuse Services to be assessed for civil commitment.

Green asserts that progress is still being made in the Martinez case. “I am hopeful there will continue to be progress to the point that he is competent,” he said.At each hearing, Dewald and a group of Brittany’s friends sit quietly on a bench in the courtroom. They wait and hope that this will be the day Martinez is deemed competent to stand trial.

“We understand that they’re doing it for a reason,” she said of Martinez’s treatment. “It’s frustrating that it’s taken so long and that they left him in the jail for a year before they took him to the new hospital.”

Dewald also feels that her friend’s death could have been prevented.

“If we were stricter on the people we let in this country, I feel that he wouldn’t have been here,” she said, referring to Martinez’s illegal status. “We can’t prevent our own people from dying or going hungry because of immigration laws that don’t get followed.” In the years that have passed, Dewald has made an effort to remember and honor her friend. She visits Brittany’s grave at least twice a year: On Jan. 3, the day her body was found, and on her birthday, April 26.

A cross that once marked where Brittany’s body was found now sits in a corner of Dewald’s backyard. She honored her friend by naming her daughter Brittany.

“I will fight for her until the day I die,” she said. “That was my family.”

Brittany’s death and life have left an indelible impression on Gibbs.

“The longer you work the case, this includes up to this moment, you find yourself bonding with her,” he said. “You work a case like that so intensely you get to know the victim. We want justice for her. She didn’t deserve what happened to her.”

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